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University of Baltimore School of Law
Gilman, Michele E.

Gilman, Evidence, Fall 2013

I. Rulings on evidence

a. FRE 103 Rulings on Evidence

i. Party can claim error in ruling only if error affects substantial right

ii. Admit

1. Objects with specificity or move to strike

iii. Excludes

1. Party on record proffers evidence to ct unless substance apparent

iv. Renewing

1. Once ct rules definitively on record, party doesn’t have to renew objection or offer proof to preserve claim for appeal

v. Cts statement

1. Ct can make any statement about character or form of

a. Evidence

b. Objection

c. Ruling

vi. Preventing jury

1. Ct must, to extent practical, conduct jury trial in way that inadmissible evidence is not suggested to jury

vii. Taking notice of plain error

1. Ct may take notice of a plain error affecting substantial right even if claim of error not properly preserved

b. Rules for appellate review

i. Lawyers responsible for raising and preserving objection

c. Preserving errors for review

i. Timely object with specific grounds

ii. Motion to strike after evidence admitted

iii. Excludes evidence

1. Offer of proof unless apparent

a. Examine wit on record

b. Lawyer proffers

c. Witness signed statement

d. Categories of error

i. Harmless

1. No affect on substantial right

ii. Reversible

1. Raised at trail and affects right

iii. Plain

1. Error not raised but affects substantial right

II. Relevance

a. FRE 401 Relevance

i. Evidence relevant if makes fact more or less probable

1. Relevant – supports inference

2. Fact is of consequence – law says what facts matter in resolving case

ii. BLUF

1. Relevance = Probative and material

a. Probative = makes something more or less material

b. Material = of consequence in determining

b. FRE 402 General Admissibility

i. Relevant evidence admissible unless

1. Constitution

2. Fed law

3. Fed rules

4. Other ruls

ii. Irrelevant evidence not admissible

c. FRE 403 Excluding Relevant evidence

i. Ct may exclude relevant evidence if probative value is substantially outweighed by prejudice

ii. Ct looks at

1. Confusing issue, misleading jury, undue delay and wasting time

iii. Balance – Prob value vs Prejudice

1. Prob value – extent to which evidence affects more likely than not standard

2. Prejudice – extent to which jury will convict for reason other than on trial

iv. Notes

1. Prejudice can be limited by presentation, jury instruction or voir dire

2. Ct also look at economic disparity

3. No probability evidence

a. Shit in shit out, jury wont see that

III. Authentication

a. FRE 104 Preliminary Question of Facts

i. A – ct must decide preliminary question about whether witness is qualified, privilege exists or evidence is admissible

1. Ct not bound by anything except rules of privilege

2. Ct does so by POE


a. Judge has to decide evidence even if legally obtained

ii. B – Relevance that depends on a fact (conditional relevance)

1. Proof must be introduced sufficient to support a finding that the fact does exist


a. Judge decides whether there is sufficient evidence to support jury finding

iii. 104 tells judge how to rule on other rules

b. FRE 901 Authentication of evidence

i. To satisfy requirement of authentication, proponenet must produce evidence sufficient to show that the item is what the proponent says it is

ii. Standard of proof

1. Is there enough evidence to permit reasonable person to conclude evidence is what dude says it is

iii. Non exhaustive list of how to authenticate

1. Testimony of expert witness

2. Non-expert opinion about handwriting

3. Comparison by an expert witness or trier of fact

4. Distinctive characteristics and the like

5. Opinion about a voice

6. Evidence about a telephone conversation

a. Evidence call made to

i. Particular person

ii. Particular business

7. Evidence about public record

a. Doc recorded / filed in pub office authorized by law

b. Pub recorded from office where doc like that would be kept

8. Evidence about ancient documents or data compilations

a. Conditions creates no suspicion

b. Place where if authentic, would likely be

c. At least 20 years old when offered

9. Evidence about a process or system

a. Evidence describing process or system and showing that it produces an accurate result


i. Other facts from evidence show that evidence is what purported to be

10. Methods provided by statute / rule

a. Any method allowed by fed law or rule by SCOTUS

iv. How to authenticate a photo

1. How to do so depends on what you are trying to prove

a. Is the pic a fair and reasonable……. Vs is this a pic of…….

c. FRE 902 Self Authenticating Evidence

i. Rule contains exclusive list of items that are self authenticating

1. Domestic public document that are sealed and signed

2. Domestic public document that are not signed but are signed and certified

a. Signature of officer

b. Seal of another public officer who ha

b. FRE 605 Judges

i. Judges cant testify as witness in a trial

ii. Party doesn’t have to object to preserve

c. FRE 606 Jurors

i. Cant testity at trial

ii. Verdicts

1. Juror cant testify about statement / incidents that occurred during deliberations

2. Exceptions

a. Extraneous prejudicial information was improperly brought to jurors attention

b. Outside influence was improperly brought to bear on a juror

c. Mistake was made in on the verdict sheet

d. FRE 602 Personal Knowledge

i. Witness may testify to matter only if evidence is introduced showing that witness has personal knowledge of the matter

1. Evidence can come from witnesses own testimony

ii. BLUF

1. Differs from hearsay b/c personal knowledge is facts gathered with own personal senses.

VI. Hearsay

a. Intro

i. OCS made in ct for truth of matter asserted

ii. Declarant –

1. can only be person

iii. Statement

1. written, oral, non verbal

a. Depends on intent of person

iv. Analysis

1. Depends on what statement is being offered for

b. FRE 802 Rule Against Hearsay

i. Hearsay not admissible unless fed law, fed rule or other rule says so

c. FRE 801 Definitions and Exclusions

i. Definitions

1. Statement – same as above

2. Declarant – person that made statement

3. Hearsay

a. OCS made for truth

ii. Statements that are not hearsay (are hearsay but AMOL are let in)

1. Prior Statements

a. Inconsistent (trying to show lying / telling truth in past)

i. Out of ct declarant testifying at trial / hearing and is subject to cross regarding OCS

ii. Prior statement is inconsistent with declarant current statement

iii. Statement was made under oath subject to perjury

b. Consistent (used to demonstrate credibility)

i. Out of ct declarant testifying at trial / hearing and subject to cross regarding OCS

ii. Statement is offered to rebut charge that declarant recently lied / subject to improper influence

iii. OCS was made before event argued to have motivated fabrication